Corporate report

Appointed Person for England and Wales: 2023 to 2024 report (accessible)

Published 18 December 2024

Applies to England and Wales

Report of the Appointed Person for England and Wales under sections 47I, 291 and 303F of the Proceeds of Crime Act 2002 and under article 17H of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 for the period 1 April 2023 until 31 March 2024.

Presented to Parliament pursuant to section 291(5) of the Proceeds of Crime Act 2002 and Article 17H of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

The Proceeds of Crime Act 2002 (POCA)

This legislation was enacted to empower police and other law enforcement agencies to investigate, search and seize the apparent assets obtained by persons and organisations by criminal activity. Assets include cash, realisable property and ‘listed assets’ (e.g. precious metals). Recovery procedures include, inter alia, confiscation upon a criminal conviction, forfeiture, freezing of accounts and real property, taxation and civil recovery from persons not convicted in the courts. The act includes anti-money laundering legislation.

POCA 2002 (External Requests and Orders) Order 2005

This Statutory Order was made under Sections 444 and 459(2) of POCA. Generally, it provides powers for the freezing of property which may be needed to satisfy requests from other countries for the recovery of criminal assets. It also enables registration and enforcement of overseas confiscation orders. The powers and obligations are similar to those for search and seizure for domestic investigations.

The Appointed Person

This is the person who has been appointed to oversee those circumstances where the exercise of these powers by appropriate officers has been carried out without judicial authority, even though a superior officer gave approval. ^{[footnote 1]} The Appointed Person must be independent and not be employed under, or for the purposes of, any government department.

An appropriate officer must file a written report to the Appointed Person where assets are seized but not detained for more than 48 hours and where no assets are seized. The report must set out why they believed the powers were exercisable and why it was not practicable to obtain prior judicial approval ^{[footnote 2]}. In accordance with the Code of Practice ^{[footnote 3]}, the report should be made as soon as practicable and, in all cases, within 14 days.

The Appointed Person must file an annual report with the Secretary of State, giving their opinion as to the circumstances and manner in which these powers were exercised without judicial approval. The report may make any recommendations the Appointed Person considers appropriate. ^{[footnote 4]}

Searches and seizures

The act sets out very detailed requirements before an appropriate officer can carry out searches for and seizures of assets. It has been amended and added to on many occasions since 2002 by widening and strengthening the powers afforded to such officers. The original act provided for search and seizure of cash (which is widely defined) ^{[footnote 5]} but now includes defined realisable property ^{[footnote 6]} and listed assets ^{[footnote 7]} . It excludes items required by the owner for work or domestic living purposes. Searches may be of a person, on premises or (under strict conditions) a vehicle.

Searches must be authorised in advance by a Justice of the Peace or, if one is not available, by a senior officer of a specific rank above that of the searching officer. However, as stated above, circumstances may arise in an investigation where, practicably, neither authority can be obtained.

Similar provisions are contained in articles 17A-17S of the Statutory Order for external requests.

If apparent assets are seized and are to be detained, with or without judicial approval for the search, an application must be brought before a court for continued detention within 48 hours of the seizure. Consequently, there is judicial oversight thereafter for a maximum of two years.

Appropriate officers

These are defined under section 47A (for realisable property) as an officer of HM Revenue and Customs (HMRC), an immigration officer, a constable, a Serious Fraud Office officer and an accredited financial investigator (AFI). Officers of the National Crime Agency who are designated to have the powers of one or more of a constable, officer of HMRC, immigration officer or general customs official or who are accredited financial investigators are included. ^{[footnote 8]}

Sections 289 and 291 (for recovery of cash) and sections 303C and 303J (for listed assets) authorise those same officers, except immigration officers, to exercise the powers of search and seizure. Although not called ‘appropriate officers’ in those sections, this report will use that term for convenience.

The provisions of sections 303B-J came into force on 16 April 2018, having been enacted by the Criminal Finances Act 2017.

External requests and orders

Provisions are made for similar search and seizure powers and reporting to the Appointed Person under the statutory order mentioned above. Immigration officers are excluded.

Reports received during the period 1 April 2023 until 31 March 2024

During this period, I received five reports of police searches under sections 47C-F and 289, for which prior judicial approval had not been obtained. In all cases, authority from a senior officer had been obtained before any searches and any seizures were carried out.

The first case was that in the course of the execution of a search warrant for drugs under drugs legislation, seizure of under section 47C of POCA of some items not connected to drugs was premature in that a suspect had not been arrested. Arrest is a prerequisite for this section’s authority. The seized items were then retained under the Police and Criminal Evidence Act 1984 in relation to the drugs investigation.

In a second case, around midnight at a port, a search of a vehicle, driven by a person previously known to police, for cash under section 289 resulted in no cash being located.

A third case involved crypto currency. Such currency is deposited in wallets which require a series of codewords (seeds) to be opened. An accredited Financial Investigator obtained approval from a senior officer as no judicial authority was available at the time, and accessed with a colleague a crypto wallet, which they believed to hold a substantial amount of such currency, to prevent any currency being dissipated. No cryptocurrency was located.

The fourth case involved a search of a car which arrived at premises already bring searched under other legislation. Police suspected the car would have substantial cash in it but no cash was found.

The fifth case involved a search by police of a vehicle for an illegal weapon. Although no weapon was found, searches of his residence and vehicles connected to him resulted in a large amount of counterfeit goods and cash being found. The Economic Crime Unit was not informed of the searches but senior officer approval was obtained.

As stated above, an application must be made to a magistrates’ court within 48 hours for the continued detention of the assets otherwise they must be returned.

The seizures this year had received senior officer approval from an inspector or more senior rank, as required in the absence of prior judicial approval. I am satisfied that prior judicial approval could not be obtained in each case.

Having carefully considered the details of each case, I am satisfied that all appropriate officers used their powers reasonably and appropriately and that the criteria required for justifying the searches were met.

Commentary

Some may consider that five cases in one year is a low number. However, it must be borne in mind that almost all searches under POCA will be well prepared in advance and based on sound evidence, information and intelligence. Such planned searches, some of which may not have prior judicial approval because of urgency, will usually result in seizures which are notified to the court within 48 hours. They do not need to be reported to the Appointed Person as the assets seized will be decided upon by the court.

As outlined in the cases above, officers commence a search for drugs or cash which results in the discovery of assets including other cash, vehicles, tobacco or other assets of which the officers had no knowledge.

In addition, police and other agencies can often use the provisions of the Police and Criminal Evidence Act 1984 (sections 8 and 19) and the Misuse of Drugs Act 1971 (section 23) to search for evidence which they may seize if it is relevant to the investigation.

Recommendations

Following my recommendation my 2021/2022 report, the Home Office designed a standardised form with guidance notes for use by all the police constabularies and other enforcement agencies for these reports. Some of the reports this year were delivered using the form, but I recommend that use of the standard form should be made by all those reporting.

Greg McCourt

Appointed Person

31 July 2024

Enquiries

Any enquiries regarding this publication should be sent to: homelandsecuritycriminalfinancesandassetrecoveryunit@homeoffice.gov.uk.

Footnotes

1. Proceeds of Crime Act 2002 sections 47H(4-5), 290-291 and 303E-F ↩

2. Proceeds of Crime Act 2002 sections 47H, 290 and 303E ↩

3. Proceeds of Crime Act 2002 sections 47S, 292 and 303G ↩

4. Proceeds of Crime Act 2002 sections 471, 291 and 303F ↩

5. Proceeds of Crime Act 2002 sections 289-293 ↩

6. Proceeds of Crime Act 2002 sections 47B-F ↩

7. Proceeds of Crime Act 2002 sections 303B-F ↩

8. Crime and Courts Act 2013 section 10(1)(a) ↩